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Wednesday, October 21, 2009

To claim under the tort of vicarious liability, firstly, we should know all the requirement of vicarious liability should be establish first in order to claim under the tort of vicarious liability. The requirements are as the following:1. There must be a wrongful tortious act2. There must be special relationship between employee-employer3. The tort must occur within the course of employment

For the first requirements they must be a wrongful tortuous act such as negligence. The second requirements is there must be special relationship, the relationship is about the relationship of employee-employer. There must be special relationship between the D and the tortfeasor. If a tort is commit on the D premise but not by his employee he cannot be vicariously liable for the tort(Ravindran a/l Kunji Kuttan vs TNB Behad). A person who is in contract of services is an employee whereas one who in a contract for services is an independent contractor. An independent contractor is one who works under a contract for service. The last requirements must fulfill the tort must occur within the course of employment, an employer is only vicarious liability for the tort of his employee which occur in the course of employment. Conduct is said to be within the course of employment if firstly is either expressly or impliedly allowed by the employer, when the employee does something that is authorize in an unauthorized manner or thirdly, the employee does something that is closely connect to what he is employed to do, in the course of doing the job. The term “within the course of employment” can also be in a situation such as carelessness of workers in the performance of his job and acting against employers express prohibition.In the case of Rosahiree Abdul Wahab VS Mejar Mustafa Omar and ORS. The court held that although D1 act were unauthorized, they were carried out during his normal course of duty. Therefore the act were so connect with his authorized act that they constituted modes, albeit in proper, of doing authorized act. This was especially so as the plaintiff was directly under the charge, supervision and controlled of D1, the court reaffirmed the principle that master is responsible not merely for what he authorized his servant to do but also for the in which the way they perform it. The government was not liable for D2 acts as he was not assigned any official duty towards the plaintiff and so his act were independent. In the case of Iqbal Vs London Transport Executives, D is not vicarious For his employee (Bus conductor) where his employee was negligence during driving the bus and the driver doesn’t follow the order. In Twine v Beans Express LTD, the employee acting contrary to his employers instruction, gave a lift to a third party who was subsequently injured due to the negligence of the employee. The employee was not vicariously liable as giving free lift was not the job the employee was employed to do and therefore he was acting outside the scope of his employment. Moreover, in Chuan Seng and CO Pinaple Factory v Idris and Anor, the defendant employee gave a lift to two person in his lorry, an accident occurred in which the two person died. The defendant was found not vicariously liable. The court follow the dicta in Twine v Beans Express LTD and stated that giving a lift was outside the scope of employment as the driver was prohibit from giving lift to other person. In Conway v George Winmpey and Co, the driver of a lorry acting against clear oral instruction of his employers, took a passenger on to the lorry. There was a notice in the lorry indicating that the driver was under strict orders not to carry passengers other then employee of the company and anyone driving on the vehicles did so at it his own risk. The passenger was subsequently injured by the negligence driving of the lorry driver and in action against the employer, the court held that the passenger to be a trespasser and therefore no duty was owed to him by the employer.Street on Tort suggest that the employers liabilities in case of an authorized passenger sustaining injury due to negligence driving of an employee should not be base on the fact that the passenger is a trespasser. The issue remains whether the prohibition against giving lift is outside the scope of employment or merely an authorized way of performing the employees work.

The comparative study between UK and Malaysia requires better definition. Still a good attempt.

...................................JEONG CHUN PHUOC A COnsultant External for an international law firm AZMI & ASSOCIATES,KL, Senior Lecturer-in-LawHe can be reached at his new email : Jeongchunphuoc@gmail.com

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